The case is called out.
Pursuant to the order of the Court dated 27.08.2019, opposite party no.6, Mohd. Miya alongwith a breast feeding baby namely Aleena Fatima aged about one year, appears before the Court to produce the child. Rest of the opposite parties no.7 to 10 are relatives to the Mohd. Miya, the opposite party no.6. Therefore, rest of the opposite parties have not appeared before the Court. Pursuant to the order, their appearance is not needed at this stage. Their appearance is discharged.
The present writ petition for the relief of Habeas Corpus is filed on behalf of Baby Aleena Fatima through her mother and natural guardian Smt. Ziya Parveen w/o Mohd. Miya, opposite party no.6. Admittedly, the girl baby is born out of wedlock of aforesaid Ziya Parveen and Mohd Miya during their co-habitation.
On perusal of the writ petition, it appears that both the parties to marriage are at some differences and Ziya Parveen, the petitioner-mother of the girl baby Aleena states that she is not willing to go with opposite party no.6, her husband, Mohd. Miya. Opposite party no.6 i.e. Mohd. Miya is willing himself to hand over the child to the wife Smt. Ziya Parveen as he stated before the Court.
As such, the parties present before the Court alongwith their learned counsels, have identified and verified the Baby child, is the same, whose production is sought in the petition.
Although, by way of supplementary affidavit, learned counsel for the petitioner have submitted in paragraph 4 that a complaint was lodged by the Ziya Parveen, whose inquiry was reported by the police that the Case Crime No.355 of 2019, registered under Sections 323, 504, 498A, 506, I.P.C. and 3/4 Dowry Prohibition Act, P.S. Malihabad, District Lucknow is registered against Mohd. Miya and the matter is sent to the mediation center.
No further disclosure as to the result of the mediation or it's pendency till date is made in the supplementary affidavit. The report further discloses that, the petitioner-complainant of the aforesaid case crime number, was advised by the police to seek remedy in competent Court for custody of child.
At this stage, in totality of circumstances, particularly keeping into mind, the tender age of girl child namely, Aleena Fatima, aged about one year who can survive on the mother's breast feeding, without embarking upon the jurisdiction under Guardian and Wards Act for the custody of child either by mother or father, when the father, opposite party no.6 himself is willing to hand over the child to the mother, this would be proper to permit them to do so. The child by opposite party no.6, Mohd. Miya, in the presence of his learned counsel, Sri Shakib Siddiqui, Advocate is handed over to Ms. Ziya Parveen, the mother of the child in presence of her learned counsel for the petitioner, Sri Ganga Prasad.
This is again made clear that the order made in this petition will not bar the jurisdiction of Court sitting in Guardians and Wards Act, 1890, in case, the father seeks legal remedy for custody and guardianship of child or any visit right under the Act.
This writ petition is disposed of accordingly.
Order Date :- 29.8.2019 Saurabh